Balderdash from BVA Judge Chiapetta

On 10/28/10,  Judge Chiapetta of Baltimore, decided that he had to deny service connection for HCV to a Veteran (Case #1040550) based on his creative thinking skills with regard to acute and chronic HCV.  This is also a jet-gun case but that’s not the issue I’m considering here.

In FINDINGS OF FACT, the judge writes:

“Hepatitis C was not shown in service or for many years thereafter and the preponderance of the evidence is against a finding that it is in any way related to the Veteran’s service.”

BUT the C. D. C. says:

What are the symptoms of acute Hepatitis C?

Approximately 70%–80% of people with acute Hepatitis C do not have any symptoms

Later Chiapetta writes:

 “…there is no medical evidence even suggestive of a possible link between his in-service risk factors and his current diagnosis of hepatitis C (which was first made almost two decade[s] after his discharge from service).”

BUT the Veteran served from August 8/74-8/76 and even though:

“…the Board notes that it is common medical knowledge that hepatitis C was not recognized prior to the late 1980s, the evidence does not support a finding of any symptoms consistent with hepatitis C while he was on active duty.”

Chiapetta insists:

“A review of the Veteran’s service treament records does not show any diagnosis or treatment for any liver-related disorders, including hepatitis C. “

  BUT the C. D. C. states:

“How soon after exposure to Hepatitis C do symptoms appear?

If symptoms occur, the average time is 6–7 weeks after exposure, but this can range from 2 weeks to 6 months. However, many people infected with the Hepatitis C virus do not develop symptoms.”

The Judge adds:

 “The report of a July 1976 examination prior to separation does not indicate that the Veteran had hepatitis C, or any other liver-related disorders.”

BUT the C. D. C. answers:

Is it possible to have Hepatitis C and not know it?

Yes, many people who are infected with the Hepatitis C virus do not know they are infected because they do not look or feel sick.

And: 

 “What are the symptoms of chronic Hepatitis C?

Most people with chronic Hepatitis C do not have any symptoms. ”

“What are the long-term effects of hepatitis C?

…5-20 people will go on to develop cirrhosis over a period of 20-30 years.”

Chiapetta has one important gottcha moment here!:

 “…The Veteran reports that he did not have hepatitis C prior to starting work at a VA Medical Center in September 2002…. He also reported that test results for his employee physical revealed negative findings for hepatitis C, and a review of the report of the September 2002 employee physical examination does not show any indication of that the Veteran had hepatitis C at that time.  …The first positive finding of hepatitis is shown in a December 2002 VA treatment record.”

We don’t know what test he was given, however, the C. D. C. informs us:

Can a person have normal liver enzyme (e.g., ALT) results and still have Hepatitis C?

Yes. It is common for persons with chronic Hepatitis C to have a liver enzyme level that goes up and down, with periodic returns to normal or near normal. Some infected persons have liver enzyme levels that are normal for over a year even though they have chronic liver disease.

I don’t know if the Veteran’s HCV infection is due to cross-contamination from jet-guns, or his service in the Army, but with the possible exception of the Veteran’s 2002 physical, Judge Chiapetta’s writing and reasoning does not appear to be based on valid scientific evidence.  Anyone see some? 

The HCV Q & A’s come from this C. D. C. Fact Sheet.


							
Posted in BvA HCV decisions, Guest authors, HCV Health | Tagged , , , , , , , , , , , , , | Leave a comment

IN VINO VERITAS

Pliny the Elder once said “In wine there is truth”, or if you’re Greek, “Ἐν οἴνῳ ἀλήθεια”. Its six of one and half a dozen of the other. I was at a wine tasting in Gig Harbor yesterday and what should my wondering eyes behold? Why naturally, a wine named after my wife.

The shots of the sunset are looking towards member Kel and Renee’s house (about twelve miles the other side of the trees in the foreground).

Yes, I agree. It’s time for those pesky trees to go to market. They’re obscuring the Olympic mountains. Unfortunately lumber is down due to low building demand so there is no money in it right now.

P.S. A partial explanation for the beautiful sunsets here was in the news this morning. The major forest fires on the Siberian peninsula are being caught by the jet stream and drifting over here. Who said Global Warming has to be ugly?

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VSO’s Report Card for 2011

Some time ago, a popular blogger made a reference that VSO’s “had better records” than attorneys.   Being a curious fellow, I had to check it out to see if his “bragging” had any substance.  It did not.     So, which is the best VSO?

NONE OF THEM!

Attorneys are the best as they had the lowest “denial” rate, according to the 2011 BVA Chairman’s Report (see page 22 for chart).  The “average”, according to the report was 24.2%, which would be a comparative grade of “C”.  Using interpolation, this would mean VSO’s with 20.9% or better deserved a “B”, while those with 28% denials or worse deserved a “D”, and the lowest 2 categories, deserved a failing grade.

The “denial” rate was used because, neither an “Award” nor a “Remand” guarantees the Veteran will receive any compensation, but a denial means the Vet will have to appeal or no benefits will be paid.  The reason for this  is because the VA has a habit of “awarding” 0% compensation where the Veteran gets an empty lolipop stick, and, unlike the VA, I do not consider “winning 0%” to be a win at all.

Based on the numbers, These VSO’s deserved an “A”

Attorneys 17.7%   A+

VVA           18.1     A

MOPH        21.7     B+

Agent          21.7     B+

DAV             22.3    B

PVA             22.8    B

VFW            23.4    B-

State           27        C-  (Notice I was being generous, as States were worse than average)

“Other”      28.8     D

AmVets      31.8     F

No Rep       36        F

Based on these stastics, we can draw these conclusions:  An attorney is probably worth the money you pay him since he greatly increases your chances of “not losing” your case, especially considering the attorneys get the toughest cases that most VSO’s were unsuccessful at winning, because most of us dont want to shell out money unnecessarily so.  So, Vets often “try” a VSO before they hire an attorney.   You also don’t fare well representing yourself, though I will be the first to admit there are “pro se” Vets who dont take no guff off anyone.

Disclosure:   No law firm compensated me monetarily for this opinion.  Also, I received no   “Free Rent” from any government agency as I have no offices in ANY of the 58 VA Regional Offices.    Finally, I was never awarded a government contract, except, of course, the contract where I agreed to risk my life for 4 years for service to my country.

Posted in Guest authors, vA news | Tagged , , , , , , , | 9 Comments

BVA–WHERE ARE THOSE 2012 DECISIONS?

 

 

Up to now, this was merely an annoying delay. What is becoming apparent is that the publishers entrusted with getting decisions out in the online version are callously ignoring us and failing to publish them. Or, conversely, they are disabling the system so as to render them inaccessible.

Attempting  to view any decision in 2012, even if you can get it to come up, yields the “Gee, sorry. That link is broken. Please try again next year.” It is now July 15th, 2012 and the year is half over plus 15 days. We have seen nary a decision that is viewable on their site. Veterans depend on these to teach them what vA’s latest technique is for denial. Since that changes all the time, we by necessity must stay on top of it. The decisions are published. That much we know. If you torque the settings and dig, you can see them posted. Accessing them is futile.

I try to steer clear of two things on this site. Politics and conspiracy theories are a dead horse. Whipping them doesn’t bring them back to life. The BvA is up to something because this isn’t an IT glitch. They’ve been publishing them for as long as I can remember. What they have been noted for perennially is the lag time of about three months on average. In no instance can I recall a delay of this magnitude. Any queries about it are greeted with a form letter that says “We’re looking into it.”

I hope they haven’t elected to use this as one of their cost-cutting ploys and then publish them en mass at the end of the year. If you haven’t noticed , they have subtly changed the web site over the last several years. Where we could once view all HCV decisions, we are now limited to the first 400 they choose to allow us to see. They have also eliminated the instructions for the Boolean search that allowed you to narrowly define the parameters of what you  sought. It still exists but if you were never party to the knowledge, they aren’t handing it out.

Boolean search technique, for those of you interested, works like this. You want to find decisions that contain HCV and PCT (for example). Simply typing these in won’t bring up the results you expect. By using quotes around “HCV” and the symbol “+” then “PCT”, you isolate your search. Hence “HCV”+”PCT” with no spaces in between will give you what you seek. vA took this off the site in 2010. Why? Sorry, no conspiracy freaks allowed here. It made sense because they don’t want you snooping. That’s common sense- not a conspiracy. They sure didn’t make any attempt to hide it. They simply removed it. It still exists somewhere because I used that tiny search bar up in the right top to look for it and got a whole page of examples-sort of. Here’s one that mentions it but I can see no way to click on just the Boolean facet. If you try it on the site  it works-it’s just invisible to the uninitiated.

July 2009 A Librarian?s… 
4. Is Boolean searching available? Truncation and wildcard searching? Proximity searching? 5. Is the keyword or relationship searching ability thorough? Is phrase searching available? Is natural language or keyword searchingmapped to a controlled vocabulary?
http://www.va.gov/valnet/docs/Electronic_Resource_Evaluation_Checklist.docx | Search This Site hyperlink opens in a new browser windowSimilarly, limiting your viewing of a particular subject to the 400 they allow you to view is a form of censorship. What if they only allowed you to look at the denials and excluded any wins. How would you gather evidence and technique to learn why and how others won? The short answer is you wouldn’t.

Now, with the advent of the “no decisions” at all, we have no way to determine what vA has in store for us. As I mentioned, every inquiry so far has resulted in no more than a desultory “We’ll look into it” but I have not had any return calls explaining the deficiency. we’ll keep you posted.

 

P.S.  Randy sends me this from Aunt Iris

 Discussion Thread
 Response via Email Via Email (Department of Veterans Affairs) 07/16/2012 09:11 AM
If you are asking about Board of Veterans Appeals decisions, they should be available soon. I do not have a date.
Posted in vA news, Veterans Law | Tagged , , , , , , , , , | 3 Comments

SO CLOSE AND YET SO FAR

Member Christine sends us this heartbreaking news. As usual, Big Pharma has decided they cannot live with meager profits and the eradication of a disease rapidly approaching epidemic proportions. Imagine what would have happened if Doctors Saulk and Sabin had taken this tack and complained the their respective profits from the sale of the Polio vaccine wouldn’t give them an early retirement or that house in the Hamptons for a weekend getaway. A lot of us would be cruising in wheelchairs. They didn’t and we aren’t.

Please sign the petition if you would. I’d like to see my son graduate from law school, and it seems this would be the vehicle if I can get some. I guess I don’t expect the vA to pony up the drugs but there’s always Medicare.

Posted in HCV Health | Tagged , , , , , , , , | 2 Comments

FASTEST GUN IN THE WEST

Member Cal sends us this priceless (and timeless) humor.

A Cowboy sitting in a saloon one Saturday night recognized an elderly man standing at the bar who, in his day, had the reputation of being the fastest gun in the West.

The young cowboy took a place next to the old-timer, bought him a drink and told him the story of his great ambition.

“Do you think you could give me some tips?” he asked.

The old man looked him up and down and said, “Well, for one thing, you’re wearing your gun too high.  Tie the holster a little lower down on your leg.”

“Will that make me a better gunfighter?” asked the young man.

“Sure will,” replied the old-timer.

The young man did as he was told, stood up, whipped out his 44 and shot the bow tie off the piano player.

“That’s terrific!” said the hot shot.  “Got any more tips for me?”

“Yep,” said the old  man.  “Cut a notch out of your holster where the hammer hits it.  That’ll give you a smoother draw”

“Will that make me a better gunfighter?” asked the younger man.

“You bet it will,” said the  old-timer.

The young man took out his knife, cut the notch, stood up, drew his gun in a blur, and then shot a cufflink off the piano player

“Wow!” exclaimed the cowboy, “I’m learnin’ somethin’ here.  Got any more tips?”

The old man pointed to a large can in a corner of the  saloon.  “See that axle grease over there?  Coat your gun with it.”

The young man went over to the can and smeared some of the grease on the barrel of his gun.

“No,” said the old-timer, “I mean smear it all over the gun, handle and all.”

“Will that make me a better gunfighter?” asked the young man.

“No,” said the old-timer, “but when Wyatt Earp gets done playing the piano, he’s gonna shove that gun up your ass, and it won’t hurt as much.”

This reminds me of arriving up country and talking with an old (6 month) hand. I mentioned that shooting tracers was a pretty cool innovation because you could see where you were shooting and “tune it up” if you were off a bit. Dale pointed out the obverse that it also put a large bullseye on you as the zipperheads could now see where you were shooting from. After about a week, FNGs usually quit using the auto selector on anything that shoots because machine guns were the biggest threat and were the primary target. You discover this when you notice the vegetation around you wiggling a lot and what sounds like angry bees around you. The other dead giveaway was nobody wanted to be near you because it was hazardous to their health.

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HOMELESS VET WINS VHA BENEFITS

Member Randy found this homeless Connecticut Yankee banished from King Eric’s Court. Its living proof that you can fight the system and win. Oddly, very few try what this gentleman did. Thank goodness someone gave him that helping hand. Sometimes its hard to know who to turn to when vA turns their back on you. After all, that’s what they’re there for. And just for the record, a Vet with an OTH discharge is always eligible for medical at a VAMC. He may not be eligible for compensation or pension benefits but is never denied lifesaving medical if he is in dire straits as this gentleman was. The Central office might want to read up on their own regulations before giving the bum’s rush to one of America’s heroes.

Posted in vA news | Tagged , , , , | 2 Comments

85% DENIAL=?

Member Darryl emailed me with his tale of woe. He’s been denied for HCV via jetguns and/or tattoos. It seems he had some artwork done in Texas before heading to Germany in the 80’s. When he was discharged, no one annotated on Item #39 (SF88) that he had one. He does have a picture of himself and his friend sporting their brand new tats in the parking lot of what is unarguably a barracks at Ft. Hood. What he doesn’t have is medical proof or a buddy letter that could win it. I gave him the briefing on how to get there and suggested, as I always do, that he should research this site rather than ask me to do the whole thing for him. Don’t get me wrong. I don’t mind helping Vets get there but there is a wealth of info that we’ve assembled here and it is filed under different categories which are fairly easy to peruse.

That’s not the reason I write this. As we discussed the denial, Darryl asked why so many lose. He was appalled to find that 85% of claims end up in the trash. Let’s look at that. Are 85% of you Veterans out there conniving, lazy welfare cheats looking for a handout? It appears so. Statistics are often touted to show trends or the proclivities of people to do things. Statistics can also be manipulated. We are well into a new electoral cycle and politicians are bandying about all manner of statistics and polls about our desires and voting habits. Armed with these, we can prove up is down given enough time and resources.

This is often what VA does. Using an 85% denial figure (which they are loathe to admit), they can imply that most claims are not legitimate. They purposefully ignore that most are imperfectly developed by untrained Veterans Service Organizations (VSOs). Remember that the 85% represents requests for grave markers, DIC , and a host of other claims above and beyond the garden variety compensation/pension claims. When you throw that in the mix, you begin to discern a disturbing pattern. vA is organized and set up with the premise that you will walk in and get a fair hearing based on the merits of the claim. When they install the doorknob seven feet off the floor, this causes problems getting in. Their attitude at that point is “What? You neglected to bring a foot stool?”

We have written much on the fact that the higher you appeal, the better the quality of the justice you receive. We have also pointed out that the Supreme Court Chief Justice put the vA’s solicitor on the spot by asking him if the vA is substantially unjustified in 60% of its actions denying Veterans. His answer was yes which pokes a large hole in the 85% theory.

Most Veterans I have talked with experience a disconnect when they use a VSO and discover that the representative assigned to them is hopelessly inadequate or so overwhelmed with his workload as to be ineffectual. Either way, it spells disaster for the endeavor. Muddling through a claim and making elementary errors means many years of litigation spent on a simple claim. Nevertheless, that is what we face with the present system.

What was Congress thinking when it limited our choices to representing ourselves or using a VSO? Quite simply, they envisaged what we are told every day-that we inhabit a Veteran friendly environment to present our claims that is non-adversarial and  gives us the benefit of the doubt. Taking the page from the AVIS® commercial I say “Well, not exactly...” I call this the paper view which is a play on the phrase “Pay per View” as in  Blockbuster. Assuredly we are promised many things. So were the Indians when they traded away Manhattan. The dichotomy begins when we dig deeper.

I don’t know how many times during one-on-one, face to face encounters with vA personnel where they have smiled, did the old head bob and nodded sagely in agreement with everything I laid out. If you were a betting man, you’d think you had this in the bag. If you were a person who is astute at reading faces and demeanor, you would open a new bank account and buy a shiny new wheelbarrow to haul your future riches to the bank.

This is where Darryl was bushwhacked. The sign on the wall says Veterans Administration.  That implies so much in the mind of a naive Veteran. It certainly did to me in 1989. Add in a VSO who brings up the compensation schedule on his computer and turns the screen towards you to show you how large a wheelbarrow you’ll be needing is another. Conveniently forgotten in all this rush to add up your new-found wealth is that little 85% hurtle no one bothers to mention. The obverse of the 85% is the 15% granted. That’s slightly better than a scratch off lotto ticket (10%). And much like the scratch off lotto ticket, the return ($1)  is often less than you put into it over 10 tickets ($10).

vA  insists their claims success rate on all claims is 84%. Right. So 84% of the time they get it right? This is impossible unless they managed to turn it around in less than a year or so. Statistics don’t show that they can have a 100% success rate on giving you your headstone and the burial gratuity yet have an error rate on compensation claims in excess of 60% of the time. I think its called the Bell Curve. The compensation errors drag the headstone thing down a bit. Que Sera Sera, right?

This is why there is no confidence in numbers and why Undersecretary Hickey got the stinging rebuke from Rep. Filner that she did. Granted, she’s only been there 14 months and Uncle Eric’s been minding the candy store since 2009, but it comes with the territory. Ideally, the dapper General himself should have been seated where she was that day.

In order to have confidence in a system (and parity), everyone has to agree on how to measure things. This begins in the weighing of evidence at the RO. It also encompasses truthfully reporting what is happening, not what the RO hierarchy wishes was happening. Putting a happy face on a disaster is reserved for FEMA and the vA has no business going there. Completing a claim for disability should not be a fast track through a computer algorithm that is programmed to pay out 15 of each thousand entered. This is what we are dealt presently and it passes muster for legitimacy. That the error rate is so high is immaterial. You had your day in court-that is what they count. The fact that you will be back again and again for the next decade is not a statistic that is examined. Each claim is a transaction. Take a number and sit down.

No one will ever know what the true numbers are as long as the government uses chicanery and ruses to hide the numbers. When you and all your engineer and construction buddies are unemployed, it doesn’t compute with 8.2% unemployment. This is generally known as massaging the nmbers to obtain what you want to present to the major media. As long as we are victims of this, Representative Filner’s job isn’t finished.

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EMPTY HOMES AND EMPTY PROMISES

I received this tweet from the tweeter gods. To be truthful, I didn’t know I had a tweetermatic. It just showed up. And look what it said. Well, actually I did some digging to see who Aaron Glantz was.

The actual tweet said:


#VA official on disability claims: “Our inventory is different than our backlog and our pending is very similar to our inventory”
Posted in vA news | Tagged , , , , | 1 Comment

A HICKEY VIGNETTE?

Member Squidley sends a suggestion for a new H-gram. A short dissertation for an e-book by her royal highness entitled:

How to deny a claim in 125 days or less

with 98% accuracy

A

Very

Short Story by

Allison A. Hickey

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